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DHS Needs Refinement of Division of Powers and Intra-Departmental

Cooperative Agreements; Need for DHS-DOJ Joint Rulemaking;

and AAO Regulations

On February 28, 2003, the Department of Justice published, as separate Part VII, in the

Federal Register: “Aliens and Nationality; Homeland Security; Reorganization of

Regulations” as a Final Rule (68 FR 9824-9846, Feb. 28, 2003), and it provides in parts:

―The Homeland Security Act of 2002, as amended, transfers the functions of the

Immigration and Naturalization Service to the Department of Homeland Security. The

Homeland Security Act of 2002, as amended, retains in the Department of Justice, under

the direction of the Attorney General, the functions of the Executive Office for

Immigration Review and other functions related to immigration that are indigenous to the

functions of the Attorney General. ……..

―EOIR was created by the Attorney General in 1983 to combine the functions of

immigration judges and the Board of Immigration Appeals into a single administrative

component of the Department of Justice under the Attorney General. 48 FR 8038 (Feb.

25, 1983). The Office of the Chief Administrative Hearing Officer (‗‗OCAHO‘‘) and its

administrative law judges were added to EOIR in 1987. 52 FR 44971 (Nov. 24, 1987).

This administrative structure separated the administrative adjudication functions from the

enforcement and service functions of the INS, both for administrative efficiency and to

foster independent judgment in adjudication. However, because both INS and EOIR were

elements of the Department of Justice, the regulations affecting these components were

included in the same chapter. The Attorney General, as the head of the Department,

amended regulations affecting both components in a coordinated manner. The enactment

of the Homeland Security Act of 2002, and its transfer of functions to the Department of

Homeland Security, now requires that the INS regulations and the EOIR regulations be

placed in separate chapters.‖ ………

―….As explained more fully below, this final rule transfers certain parts that relate to the

jurisdiction and procedures of EOIR to a new chapter V, i.e. administrative review

provisions.‖ At 9824

The above makes clear that the administrative review provisions were primarily EOIR

regulations, having been primarily written by EOIR for their use. The provisions

pertaining to the AAU of Legacy INS were not the main focus or very well considered

when they were originally written and have not been updated in accordance with changes

over the years.

“B. General Comments

The rule makes no substantive change in the regulations. The rule is a technical rule

dividing the regulations for purposes of the transfer of authorities under the HSA. For the

ease of public understanding, the structure of chapter V has been created in parallel to the

existing structure of chapter I. At 9824……..

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The rule also makes a number of specific technical amendments to continue existing

authority that cannot be made by simply moving or duplicating sections. For example, the

precedent decisions of the Board of Immigration Appeals and the INS are published in

Administrative Decisions under the Immigration and Nationality Laws of the United

States, cited as ‗‗I&N Dec.‘‘ However, there is no rule that currently provides for the

publication of Service decisions outside of 8 CFR 103.3, and that provision is incomplete.

Accordingly, a provision has been added to chapter I, part 1, providing for the

determination of precedent decisions within the Department of Homeland Security and

publication of such decisions by EOIR in Administrative Decisions under the

Immigration and Nationality Laws of the United States.”At 9825

“F. Summary of the Changes From 8 CFR Chapter I to Chapter V

Set out below are general descriptions of the sets of changes in chapter I to chapter V and

the rationale for each set of changes. …………

Part 103—Powers and duties of service officers; availability of service records, is

partially duplicated and is amended in several sections to ensure that the existing

practices of EOIR are not changed through the transfer of functions.‖ At 9826

………......

―Part 238—Expedited removal of aggravated felons, is duplicated in part 1238 because

the expedited removal under this part can be converted to ordinary removal proceedings

before an immigration judge under part 240, and initiated proceedings under part 240

may, upon approval of the immigration judge, be terminated and the INS may then file

expedited removal proceedings under part238.

[See 8 CFR § 238.1 and/or § 1238.1 starting on page 20.]

Part 239—Initiation of removal proceedings, is duplicated as part 1239 because the

initiation of proceedings before immigration judges is a detailed mix of authority of

service officers to initiate and file charges before an immigration judge.‖ At 9826-9827

Matter of Lujan, 25 I&N Dec. 53 (BIA 2009)

The Board of Immigration Appeals lacks jurisdiction to review an appeal by the

Department of Homeland Security of an Immigration Judge‘s decision to vacate an

expedited removal order after a claimed status review hearing pursuant to 8 C.F.R. §

1235.3(b)(5)(iv) (2009), at which the Immigration Judge determined the respondent to be

a United States citizen.

―…without an explicit grant of appellate jurisdiction in an otherwise carefully constructed

regulatory and statutory process, we cannot assume appellate jurisdiction. Moreover, the DHS‘s

hypothetical regarding a criminal alien does not persuade us that we should assert jurisdiction in

the absence of such an explicit grant. First, the criminal grounds of inadmissibility are not

grounds that can be invoked in an expedited removal proceeding, which is limited to aliens who

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are inadmissible under sections 212(a)(6)(C) and (7) of the Act. While an alien may also be

inadmissible on grounds related to criminal conduct, it is clear that the expedited removal

process was not designed for the adjudication of contested issues of removability such as

criminal charges. Second, the DHS has inherent flexibility, in the exercise of prosecutorial

discretion, to pursue removal of an alien in either expedited removal proceedings or proceedings

under section 240 of the Act. The DHS is aware of the regulatory scheme governing further

administrative review of claims in expedited removal proceedings, and we are not persuaded by

its assertion that this scheme should be ignored. Finally, it is less than likely that a person found

by an Immigration Judge to be a citizen of the United States would ―indisputably‖ have no

authorization to remain in the United States, even though the DHS may disagree with the

Immigration Judge‘s decision in a close case. Furthermore, where it is apparent that citizenship is

to be a contested issue, the DHS has the prosecutorial discretion to stop the expedited removal

process and initiate removal proceedings under section 240 of the Act.

The limits on our appellate jurisdiction and on the ability of the DHS to commence

section 240 removal proceedings are regulatory in nature. Just as we are bound by those

regulations, so too may those regulations be amended if the Attorney General, acting in

concert with the Secretary of Homeland Security, so determines. [Emphasis added.]

We conclude by noting that an important purpose behind expedited removal proceedings

is to ensure that appropriate cases are, in fact, expedited. This means deciding cases involving

minimal or no controversy promptly and without multiple layers of administrative and judicial

review. There is, for example, no further administrative review of an Immigration Judge‘s

determination that an arriving alien has or lacks a credible fear of persecution. 8 C.F.R. §§

1208.30(g)(2)(iv)(A), (B) (2009). We would be acting ultra vires if we assumed jurisdiction in

such a case, just as we would if we assumed jurisdiction here.‖ At 56

One troublesome regulation that needs to be tackled is 8 CFR § 1235.3(b)(5)(iv), which states:

―(iv) Review of order for claimed lawful permanent residents, refugees, asylees, or U.S. citizens.

A person whose claim to U.S. citizenship has been verified may not be ordered removed. When

an alien whose status has not been verified but who is claiming under oath or under penalty of

perjury to be a lawful permanent resident, refugee, asylee, or U.S. citizen is ordered removed

pursuant to section 235(b)(1) of the Act, the case will be referred to an immigration judge for

review of the expedited removal order under section 235(b)(1)(C) of the Act and

§235.6(a)(2)(ii). If the immigration judge determines that the alien has never been admitted as a

lawful permanent resident or as a refugee, granted asylum status, or is not a U.S. citizen, the

order issued by the immigration officer will be affirmed and the Service will remove the alien.

There is no appeal from the decision of the immigration judge. If the immigration judge

determines that the alien was once so admitted as a lawful permanent resident or as a refugee, or

was granted asylum status, or is a U.S. citizen, and such status has not been terminated by final

administrative action, the immigration judge will terminate proceedings and vacate the expedited

removal order. The Service may initiate removal proceedings against such an alien, but not

against a person determined to be a U.S. citizen, in proceedings under section 240 of the Act. During removal proceedings, the immigration judge may consider any waivers, exceptions, or

requests for relief for which the alien is eligible.‖

Page 4

The above regulation is ultra vires because the IJ as a representative of the A.G. is not the

designee within the INA to make the initial determination of USC inside the United States, the

Secretary of Homeland Security through USCIS is the official with delegated statutory

authority.1 However, in matters of legal interpretation, the A.G. is the final arbiter to whom the

Secretary must defer. INA § 103(a)(1) [8 USC 1103(a)(1)]. The BIA can exercise this legal

interpretation authority on behalf of the A.G. USCIS, including AAO can exercise the

Secretary‘s authority2 in citizenship claim cases. The AAO/Secretary, in consultation with the

EOIR/BIA/A.G., can also publish Precedent Decisions within its areas of expertise (see 8 CFR §

103.3(c)).

Who deserves the right to consider the facts of the particular citizenship claim case in the first

instance when there is disagreement between an IJ and ICE Counsel? Is it properly a matter for

the AAO or should it go to the BIA? The BIA has dismissed the DHS appeal and closed that as

an option via Lujan.

IF, DHS switches to § 240 instead and the BIA disagrees with the IJ determination and then the

claimant fights the Removal Order in a Petition for Review in a Circuit Court of Appeals. DHS

can dispute the claim to USC, but if the Circuit Court finds that questions of material facts exist,

it then transfers the case to District Court. Again it falls to DHS to fight in court as it should be.

However, if the BIA agrees with the IJ what should it do? On the one hand, the BIA is

ostensibly speaking for the A.G. and the Secretary is supposed to defer to that determination in

matters of legal interpretation. On the other hand, this particular determination is supposed to be

made by the Secretary in the first instance according to the INA.

Should such a case be decided through direct consultation between the BIA and AAO?

Should the case be held in abeyance by the BIA and referred to the AAO?

Should the matter be forwarded (certified or referred) directly to the A.G in order to

settle the dispute between DHS and EOIR?

Should the proceedings be remanded back to the IJ with instructions to suspend

proceedings and the claimant be directed to file an N-600 with USCIS (the IJ can grant a

fee waiver if need be and USCIS will honor it as it does for any other application for

relief directed to be filed with USCIS by an IJ‘s order)?

Should the IJ have suspended, terminated without prejudice, or administratively closed

the Removal Proceeding and directed the claimant to file an N-600 without deciding the

final merits and thus have avoided allowing the case to be appealed to the BIA in the first

place?

What is ICE Counsel‘s role? To Join a Motion? To authorize parole? Can ICE detain the

individual whose status is uncertain by virtue of a dispute between ICE and the IJ?

Should CBP have contacted USCIS rather than sending the case to Immigration Court?

Should CBP have paroled the individual to appear at a USCIS Office in the same manner

as a deferred inspection used to be handled under INS?

1 Even the State Department should not be issuing Passports to derivative citizens that are resident inside the U.S.,

but that is a whole other debate. 2 Department of Homeland Security Delegation Memos 0150 and 0150.1, Delegation to the Bureau of Citizenship

and Immigration Services [now USCIS].

Page 5

Any regulations promulgated to address this situation should be made in consultation between

EOIR and DHS. DHS would need to address the appropriate actions to be taken by CBP, ICE

and USCIS at various stages of the processing of the case. Likewise, EOIR must consider the

correct actions to be taken by an IJ and the BIA in the overall picture and in consideration of the

required actions of the various DHS Agencies.

On May 2, 2011, USCIS issued a Final Policy Memo (PM-602-0029) entitled ―Guidance for

Coordinating the Adjudication of Applications and Petitions Involving Individuals in Removal

Proceedings; Revisions to the Adjudicator‘s Field Manual (AFM) New Chapter 10.3(i): AFM

Update AD 11-16‖ which was initially issued on February 4, 2011. Similar coordination is

called for between USCIS and CBP in cases where someone makes a claim to U.S. Citizenship

as an affirmative defense to Expedited Removal.

8 CFR § 235.3 Inadmissible aliens and expedited removal.

(b) Expedited removal

(5) Claim to lawful permanent resident, refugee, or asylee status or U.S. citizenship —

(i) Verification of status. If an applicant for admission who is subject to expedited removal

pursuant to section 235(b)(1) of the Act claims to have been lawfully admitted for permanent

residence, admitted as a refugee under section 207 of the Act, granted asylum under section 208

of the Act, or claims to be a U.S. citizen, the immigration officer shall attempt to verify the

alien's claim. Such verification shall include a check of all available Service data systems

and any other means available to the officer. An alien whose claim to lawful permanent

resident, refugee, asylee status, or U.S. citizen status cannot be verified will be advised of the

penalties for perjury, and will be placed under oath or allowed to make a declaration as permitted

under 28 U.S.C. 1746, concerning his or her lawful admission for permanent residence,

admission as a refugee under section 207 of the Act, grant of asylum status under section 208 of

the Act, or claim to U.S. citizenship. A written statement shall be taken from the alien in the

alien's own language and handwriting, stating that he or she declares, certifies, verifies, or states

that the claim is true and correct. The immigration officer shall issue an expedited order of

removal under section 235(b)(1)(A)(i) of the Act and refer the alien to the immigration judge for

review of the order in accordance with paragraph (b)(5)(iv) of this section and §235.6(a)(2)(ii).

The person shall be detained pending review of the expedited removal order under this

section. Parole of such person, in accordance with section 212(d)(5) of the Act, may be

permitted only when the Attorney General determines, in the exercise of discretion, that

parole is required to meet a medical emergency or is necessary for a legitimate law

enforcement objective.

[CBP or ICE can parole a person who claims U.S. citizenship and refer them to USCIS to

pursue the claim via an N-600. If warranted, ICE could escort a person to USCIS or

electronically monitor someone determined to be a flight risk, if need be.]

(iv) Review of order for claimed lawful permanent residents, refugees, asylees, or U.S. citizens.

A person whose claim to U.S. citizenship has been verified may not be ordered removed. When

Page 6

an alien whose status has not been verified but who is claiming under oath or under penalty

of perjury to be a lawful permanent resident, refugee, asylee, or U.S. citizen is ordered

removed pursuant to section 235(b)(1) of the Act, the case will be referred to an

immigration judge for review of the expedited removal order under section 235(b)(1)(C) of

the Act and §235.6(a)(2)(ii). If the immigration judge determines that the alien has never been

admitted as a lawful permanent resident or as a refugee, granted asylum status, or is not a U.S.

citizen, the order issued by the immigration officer will be affirmed and the Service will remove

the alien. There is no appeal from the decision of the immigration judge. If the immigration

judge determines that the alien was once so admitted as a lawful permanent resident or as a

refugee, or was granted asylum status, or is a U.S. citizen, and such status has not been

terminated by final administrative action, the immigration judge will terminate proceedings

and vacate the expedited removal order. The Service may initiate removal proceedings against

such an alien, but not against a person determined to be a U.S. citizen, in proceedings under

section 240 of the Act. During removal proceedings, the immigration judge may consider any

waivers, exceptions, or requests for relief for which the alien is eligible.

[This regulation is ultra vires because an IJ lacks statutory authority to determine

citizenship claims in the first instance. See INA § 103(a).]

(7) Review of expedited removal orders. Any removal order entered by an examining

immigration officer pursuant to section 235(b)(1) of the Act must be reviewed and approved

by the appropriate supervisor before the order is considered final. Such supervisory review

shall not be delegated below the level of the second line supervisor, or a person acting in that

capacity. The supervisory review shall include a review of the sworn statement and any

answers and statements made by the alien regarding a fear of removal or return. The

supervisory review and approval of an expedited removal order for an alien described in section

235(b)(1)(A)(iii) of the Act must include a review of any claim of lawful admission or parole and

any evidence or information presented to support such a claim, prior to approval of the order. In

such cases, the supervisor may request additional information from any source and may

require further interview of the alien.

[It seems that DHS already has regulatory language upon which to base a solo Policy

Memo governing CBP referral actions regarding a citizenship claimant whereby it could be

an option for CBP to refer the case to USCIS either, before or instead, to an IJ. In the

alternative the same regulations would support a joint Policy Memo between CBP and/or

ICE and USCIS.]

―Part 337—Oath of allegiance, is duplicated in part 1337 only because it involves the

authority of immigration judges to administer the oath of citizenship in naturalization

ceremonies, and related authorities.‖ At 9827

An IJ only has authority to administer the Oath at a naturalization ceremony upon invitation by

USCIS. An IJ and the BIA lack authority to determine initial citizenship claims such as would be

made via form N-600 or as to final naturalization eligibility as would be made via form N-400 or

as reviewable by a District Court under INA §§ 336(b), 310(c), 360(a), or 242(b)(5).

Page 7

“H. Changes Deferred

A number of changes will need to be made in the future, but are not made at this time.

For example, part 215, concerning departure control, refers to ‗‗special inquiry officers‘‘

instead of immigration judges. This is not uncommon in the older provisions of 8 CFR

that have not been amended since 1987. Amendments to this particular part require the

concurrence of the Secretary of State because this part is a parallel to 22 CFR part 46.

Rather than attempt to conform two separate parts, neither of which will remain within

the jurisdiction of the Attorney General, this commonly understood term—a historical

anomaly that predates the creation of EOIR and means ‗‗immigration judge‘‘—is left in

place until such time as the Secretary of State and the Secretary of Homeland Security

determine to change the substantive regulations, at which time they, and the Attorney

General, will make this necessary but only technical adjustment.‖ At 9828

Clear Need for Immigration Appellate Regulatory Reforms for Use by AAO

Some areas of mutual concern have been addressed by the BIA thus AAO could borrow some

ideas or at least use some as a starting point. However, there are certain differences where AAO

will need to be creative and open to changes based on qualitative differences in the nature of the

underlying cases before it. Previously existing regulations specific to the AAU (AAO‘s

predecessor) are inadequate for AAO‘s current position in its U.S. Citizenship and Immigration

Services (USCIS) role as a customer service oriented benefits determination organization. The

former Immigration and Naturalization Service (Legacy INS) was a law enforcement oriented

organization. The law enforcement aspects and functions of Legacy INS have been excised from

benefits adjudications and placed primarily within two other DHS components: 1.) U.S.

Immigration and Customs Enforcement (ICE) and 2.) U.S. Customs and Border Protection

(CBP), and to a much lesser extent, 3.) The Transportation and Security Administration (TSA)

and, 4.) The Federal Protective Service (FPS).

8 CFR § 1003.1 Organization, jurisdiction, and powers of the Board of Immigration

Appeals.

(a)(1) Organization. There shall be in the Department of Justice a Board of Immigration

Appeals, subject to the general supervision of the Director, Executive Office for Immigration

Review (EOIR). The Board members shall be attorneys appointed by the Attorney General to act

as the Attorney General's delegates in the cases that come before them. The Board shall consist

of 15 members. A vacancy, or the absence or unavailability of a Board member, shall not impair

the right of the remaining members to exercise all the powers of the Board.

(2) Chairman. …..

(3) Panels. …..

(4) Temporary Board members. …..

(5) En banc process. …..

Page 8

(6) Board staff. …..

(b) Appellate jurisdiction. Appeals may be filed with the Board of Immigration Appeals from the

following: ……

(c) Jurisdiction by certification……

(d) Powers of the Board —

(1) Generally……

(2) Summary dismissal of appeals —

(i) Standards.

(ii) Action by the Board. The Board's case management screening plan shall promptly identify

cases that are subject to summary dismissal pursuant to this paragraph. An order dismissing any

appeal pursuant to this paragraph (d)(2) shall constitute the final decision of the Board.

(iii) Disciplinary consequences. The filing by an attorney or representative accredited under

§1292.2(d) of this chapter of an appeal that is summarily dismissed under paragraph (d)(2)(i) of

this section may constitute frivolous behavior under §1003.102(j). Summary dismissal of an

appeal under paragraph (d)(2)(i) of this section does not limit the other grounds and procedures

for disciplinary action against attorneys or representatives.

(3) Scope of review.

(i) The Board will not engage in de novo review of findings of fact determined by an

immigration judge. Facts determined by the immigration judge, including findings as to the

credibility of testimony, shall be reviewed only to determine whether the findings of the

immigration judge are clearly erroneous.

(ii) The Board may review questions of law, discretion, and judgment and all other issues in

appeals from decisions of immigration judges de novo.

(iii) The Board may review all questions arising in appeals from decisions issued by Service

officers de novo.

(iv) Except for taking administrative notice of commonly known facts such as current events or

the contents of official documents, the Board will not engage in fact-finding in the course of

deciding appeals. A party asserting that the Board cannot properly resolve an appeal without

further fact-finding must file a motion for remand. If further fact-finding is needed in a particular

case, the Board may remand the proceeding to the immigration judge or, as appropriate, to the

Service.

Page 9

(4) Rules of practice. The Board shall have authority, with the approval of the Director, EOIR, to

prescribe procedures governing proceedings before it. …….

[Proceedings and cases arising before USCIS/Directors/AAO are qualitatively different

than those before EOIR: IJ’s/BIA or ALJ’s/OCAHO.]

http://www.justice.gov/eoir/vll/qapracmanual/apptmtn4.htm before the BIA.

http://www.justice.gov/eoir/vll/OCIJPracManual/ocij_page1.htm before IJ‘s.

28 CFR Part 68 http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=/ecfrbrowse/Title28/28cfr68_main_02.tpl Rules of Practice and Procedure for Administrative Hearings Before Administrative Law Judges

in OCAHO Cases Involving Allegations of Unlawful Employment of Aliens, Unfair

Immigration-Related Employment Practices and Document Fraud Cases; or IMBRA information

dissemination violations. [USCIS has MOA’s with DOJ-CRT’s OSC and also with ICE that

would govern most, if not all, referrals to OCAHO via one of its partners. IMBRA violation

referrals are as yet unclear.]

(5) Discipline of attorneys and representatives. The Board shall determine whether any

organization or individual desiring to represent aliens in immigration proceedings meets the

requirements as set forth in §1292.2 of this chapter. It shall also determine whether any

organization desiring representation is of a kind described in §1001.1(j) of this chapter, and shall

regulate the conduct of attorneys, representatives of organizations, and others who appear in a

representative capacity before the Board or the Service or any immigration judge.

A USCIS Practitioner Discipline rule is currently in a review and comment process and has been

published in the Federal Register. Comments have been plentiful and are being digested.

(6) Identity, law enforcement, or security investigations or examinations. (i) The Board shall not

issue a decision affirming or granting to an alien an immigration status, relief or protection from

removal, or other immigration benefit, as provided in 8 CFR 1003.47(b), that requires

completion of identity, law enforcement, or security investigations or examinations if:

………..

IJ‘s and the BIA have procedures in place to refer tentative grantees back to USCIS Service

Centers for background checks before finalizing an award of benefits or relief from removal.

(7) Finality of decision. The decision of the Board shall be final except in those cases reviewed

by the Attorney General in accordance with paragraph (h) of this section. The Board may

return a case to the Service or an immigration judge for such further action as may be

appropriate, without entering a final decision on the merits of the case.

The above seems to be at odds with the actions taken in Matter of Lujan, supra and should have

overridden the Board‘s interpretation and the procedures followed in that case.

Page 10

(e) Case management system. The Chairman shall establish a case management system to screen

all cases and to manage the Board's caseload. Unless a case meets the standards for assignment

to a three-member panel under paragraph (e)(6) of this section, all cases shall be assigned to a

single Board member for disposition. The Chairman, under the supervision of the Director, shall

be responsible for the success of the case management system. The Chairman shall designate,

from time to time, a screening panel comprising a sufficient number of Board members who are

authorized, acting alone, to adjudicate appeals as provided in this paragraph.

(1) Initial screening. All cases shall be referred to the screening panel for review. Appeals

subject to summary dismissal as provided in paragraph (d)(2) of this section should be promptly

dismissed.

(2) Miscellaneous dispositions. A single Board member may grant an unopposed motion or a

motion to withdraw an appeal pending before the Board. In addition, a single Board member

may adjudicate a Service motion to remand any appeal from the decision of a Service officer

where the Service requests that the matter be remanded to the Service for further consideration of

the appellant's arguments or evidence raised on appeal; a case where remand is required because

of a defective or missing transcript; and other procedural or ministerial issues as provided by the

case management plan.

(3) Merits review. In any case that has not been summarily dismissed, the case management

system shall arrange for the prompt completion of the record of proceedings and transcript, and

the issuance of a briefing schedule. A single Board member assigned under the case management

system shall determine the appeal on the merits as provided in paragraph (e)(4) or (e)(5) of this

section, unless the Board member determines that the case is appropriate for review and decision

by a three-member panel under the standards of paragraph (e)(6) of this section. The Board

member may summarily dismiss an appeal after completion of the record of proceeding.

(4) Affirmance without opinion.

(i) The Board member to whom a case is assigned shall affirm the decision of the Service or the

immigration judge, without opinion, if the Board member determines that the result reached in

the decision under review was correct; that any errors in the decision under review were

harmless or nonmaterial; and that

(A) The issues on appeal are squarely controlled by existing Board or federal court precedent and

do not involve the application of precedent to a novel factual situation; or

(B) The factual and legal issues raised on appeal are not so substantial that the case warrants the

issuance of a written opinion in the case.

(ii) If the Board member determines that the decision should be affirmed without opinion, the

Board shall issue an order that reads as follows: ―The Board affirms, without opinion, the result

of the decision below. The decision below is, therefore, the final agency determination. See 8

CFR 3.1(e)(4).‖ An order affirming without opinion, issued under authority of this provision,

shall not include further explanation or reasoning. Such an order approves the result reached in

Page 11

the decision below; it does not necessarily imply approval of all of the reasoning of that decision,

but does signify the Board's conclusion that any errors in the decision of the immigration judge

or the Service were harmless or nonmaterial.

(5) Other decisions on the merits by single Board member. If the Board member to whom an

appeal is assigned determines, upon consideration of the merits, that the decision is not

appropriate for affirmance without opinion, the Board member shall issue a brief order affirming,

modifying, or remanding the decision under review, unless the Board member designates the

case for decision by a three-member panel under paragraph (e)(6) of this section under the

standards of the case management plan. A single Board member may reverse the decision under

review if such reversal is plainly consistent with and required by intervening Board or judicial

precedent, by an intervening Act of Congress, or by an intervening final regulation. A motion to

reconsider or to reopen a decision that was rendered by a single Board member may be

adjudicated by that Board member unless the case is reassigned to a three-member panel as

provided under the standards of the case management plan.

(6) Panel decisions. Cases may only be assigned for review by a three-member panel if the case

presents one of these circumstances:

(i) The need to settle inconsistencies among the rulings of different immigration judges;

(ii) The need to establish a precedent construing the meaning of laws, regulations, or procedures;

(iii) The need to review a decision by an immigration judge or the Service that is not in

conformity with the law or with applicable precedents;

(iv) The need to resolve a case or controversy of major national import;

(v) The need to review a clearly erroneous factual determination by an immigration judge; or

(vi) The need to reverse the decision of an immigration judge or the Service, other than a reversal

under §1003.1(e)(5).

(7) Oral argument. When an appeal has been taken, a request for oral argument if desired shall

be included in the Notice of Appeal. A three-member panel or the Board en banc may hear oral

argument, as a matter of discretion, at such date and time as is established under the Board's case

management plan. Oral argument shall be held at the offices of the Board unless the Deputy

Attorney General or his designee authorizes oral argument to be held elsewhere. The Service

may be represented before the Board by an officer of the Service designated by the Service. No

oral argument will be allowed in a case that is assigned for disposition by a single Board

member.

(8) Timeliness. As provided under the case management system, the Board shall promptly enter

orders of summary dismissal, or other miscellaneous dispositions, in appropriate cases. In other

cases, after completion of the record on appeal, including any briefs, motions, or other

submissions on appeal, the Board member or panel to which the case is assigned shall issue a

Page 12

decision on the merits as soon as practicable, with a priority for cases or custody appeals

involving detained aliens.

(i) Except in exigent circumstances as determined by the Chairman, or as provided in paragraph

(d)(6) of this section, the Board shall dispose of all appeals assigned to a single Board member

within 90 days of completion of the record on appeal, or within 180 days after an appeal is

assigned to a three-member panel (including any additional opinion by a member of the panel).

(ii) In exigent circumstances, the Chairman may grant an extension in particular cases of up to 60

days as a matter of discretion. Except as provided in paragraph (e)(8)(iii) or (iv) of this section,

in those cases where the panel is unable to issue a decision within the established time limits, as

extended, the Chairman shall either assign the case to himself or a Vice-Chairman for final

decision within 14 days or shall refer the case to the Attorney General for decision. If a

dissenting or concurring panel member fails to complete his or her opinion by the end of the

extension period, the decision of the majority will be issued without the separate opinion.

(iii) In rare circumstances, when an impending decision by the United States Supreme Court or a

United States Court of Appeals, or impending Department regulatory amendments, or an

impending en banc Board decision may substantially determine the outcome of a case or group

of cases pending before the Board, the Chairman may hold the case or cases until such decision

is rendered, temporarily suspending the time limits described in this paragraph (e)(8).

(iv) For any case ready for adjudication as of September 25, 2002, and that has not been

completed within the established time lines, the Chairman may, as a matter of discretion, grant

an extension of up to 120 days.

(v) The Chairman shall notify the Director of EOIR and the Attorney General if a Board member

consistently fails to meet the assigned deadlines for the disposition of appeals, or otherwise fails

to adhere to the standards of the case management system. The Chairman shall also prepare a

report assessing the timeliness of the disposition of cases by each Board member on an annual

basis.

(vi) The provisions of this paragraph (e)(8) establishing time limits for the adjudication of

appeals reflect an internal management directive in favor of timely dispositions, but do not affect

the validity of any decision issued by the Board and do not, and shall not be interpreted to, create

any substantive or procedural rights enforceable before any immigration judge or the Board, or

in any court of law or equity.

(f) Service of Board decisions. The decision of the Board shall be in writing and copies thereof

shall be transmitted by the Board to the Service and a copy shall be served upon the alien or

party affected as provided in part 292 [1292] of this chapter.

(g) Decisions as precedents. Except as Board decisions may be modified or overruled by the

Board or the Attorney General, decisions of the Board, and decisions of the Attorney General,

shall be binding on all officers and employees of the Department of Homeland Security or

immigration judges in the administration of the immigration laws of the United States. By

Page 13

majority vote of the permanent Board members, selected decisions of the Board rendered by a

three-member panel or by the Board en banc may be designated to serve as precedents in all

proceedings involving the same issue or issues. Selected decisions designated by the Board,

decisions of the Attorney General, and decisions of the Secretary of Homeland Security to the

extent authorized in paragraph (i) of this section, shall serve as precedents in all proceedings

involving the same issue or issues.

(h) Referral of cases to the Attorney General.

(1) The Board shall refer to the Attorney General for review of its decision all cases that:

(i) The Attorney General directs the Board to refer to him.

(ii) The Chairman or a majority of the Board believes should be referred to the Attorney General

for review.

(iii) The Secretary of Homeland Security, or specific officials of the Department of Homeland

Security designated by the Secretary with the concurrence of the Attorney General, refers to the

Attorney General for review.

(2) In any case the Attorney General decides, the Attorney General's decision shall be stated in

writing and shall be transmitted to the Board or Secretary, as appropriate, for transmittal and

service as provided in paragraph (f) of this section.

(i) Publication of Secretary's precedent decisions. The Secretary of Homeland Security, or

specific officials of the Department of Homeland Security designated by the Secretary with the

concurrence of the Attorney General, may file with the Attorney General decisions relating to the

administration of the immigration laws of the United States for publication as precedent in future

proceedings, and, upon approval of the Attorney General as to the lawfulness of such decision,

the Director of the Executive Office for Immigration Review shall cause such decisions to be

published in the same manner as decisions of the Board and the Attorney General.

(j) Continuation of jurisdiction and procedure. The jurisdiction of, and procedures before, the

Board of Immigration Appeals in exclusion, deportation, removal, rescission, asylum-only, and

any other proceedings, shall remain in effect as in effect on February 28, 2003, until the

regulations in this chapter are further modified by the Attorney General. Where a decision

of an officer of the Immigration and Naturalization Service was, before March 1, 2003,

appealable to the Board or to an immigration judge, or an application denied could be renewed in

proceedings before an immigration judge, the same authority and procedures shall be followed

until further modified by the Attorney General.

―The Attorney General vacated the decision in Matter of Compean, Bangaly & J-E-C-, 24 I&N

Dec. 710 (A.G. 2009), and pending the outcome of a rulemaking process, directed the Board

of Immigration Appeals and the Immigration Judges to continue to apply the previously

established standards for reviewing motions to reopen based on claims of ineffective assistance

of counsel.‖ Matter of Compean, Bangaly & J-E-C-, 25 I&N Dec. 1 (A.G. 2009).

Page 14

An announcement was made by the AAO Chief and the USCIS Director in an October 2010

―Stakeholder Engagement‖ that the AAO is currently writing regulations for publication ―soon‖.

It is clear that specific areas of concern have been identified and do exist regarding the working

relationships between the Departments of Justice and Homeland Security as well as matters

pertaining to proper jurisdiction as well as management and exercise of statutory authorities. It is

also clear that there are areas of concern as to communication between the various components

within each of these Departments. The A.G has directed the EOIR and BIA to promulgate

regulations in order to codify and refine the Lozada requirements concerning claims of

ineffective assistance of counsel. The Courts have further identified a need for those regulations

to be promulgated with specific additional processing concerns being addressed. The BIA has

found an area within the existing regulations, in Lujan, that needs attention from a joint

perspective between DOJ and DHS. The USCIS Director has directed the AAO Chief to

promulgate a rule to streamline its appellate operations. That same rule was in the works in the

past but fell by the wayside without follow through. The Courts and the various Departments

through their agencies and components have found other areas of concern that are not addressed

in this essay but they should not be ignored either.

Compare EOIR/BIA 8 CFR § 1003.1 above to USCIS/AAO 8 CFR § 103.3 below:

8 CFR § 103.3 Denials, appeals, and precedent decisions.

(a) Denials and appeals —

(1) General —

(i) Denial of application or petition. When a Service officer denies an application or petition

filed under §103.2 of this part, the officer shall explain in writing the specific reasons for denial.

If Form I–292 (a denial form including notification of the right of appeal) is used to notify the

applicant or petitioner, the duplicate of Form I–292 constitutes the denial order.

(ii) Appealable decisions. Certain unfavorable decisions on applications, petitions, and other

types of cases may be appealed. Decisions under the appellate jurisdiction of the Board of

Immigration Appeals (Board) are listed in §3.1(b) of this chapter. Decisions under the appellate

jurisdiction of the Associate Commissioner, Examinations, are listed in §103.1(f)(2) of this part.

(iii) Appeal —

(A) Jurisdiction. When an unfavorable decision may be appealed, the official making the

decision shall state the appellate jurisdiction and shall furnish the appropriate appeal form.

On AAO Jurisdiction:

The jurisdiction of the AAO is limited to that authority specifically granted to it by the Secretary

of the United States Department of Homeland Security. See DHS Delegation Number 0150.1

Page 15

(effective March 1, 2003). Delegations that pertain to the Secretary‘s powers under the INA are

covered at least in part by 8 CFR Part 100, but gaps remain to be filled.

The AAO exercises appellate jurisdiction over the matters described in 8 CFR § 103.1(f)(3)(iii)

(as in effect on February 28, 2003), with two exceptions: (1) petitions for approval of schools

and the appeals of denials of such petitions are the responsibility of Immigration and Customs

Enforcement; and (2) applications for S nonimmigrant status are the responsibility of the Office

of Fraud Detection and National Security of U.S. Citizenship and Immigration Services.

―The AAO does not have appellate jurisdiction over an appeal from the denial of an application

for adjustment of status under section 245(a) of the Immigration and Nationality Act (the Act). 8

C.F.R. § 245.2(a)(5)(ii).‖3

―The AAO has jurisdiction to review denials of applications for adjustment of status filed by

aliens seeking the bona fide marriage exemption and aliens in U or T nonimmigrant status.

Section 245(e), (1) and (m) of the Act, 8 U.S.C. § 1255(e), (I), (m); 8 C.F.R. §§ 245.l(c)(8)(viii),

245.23(i), 245.24(0(2). The AAO has no jurisdiction to review denials of applications for

adjustment of status under section 245(a) of the Act. 8 C.F.R. § 245.2(a)(5)(ii).‖ 4

AAO has jurisdiction over Adjustment of Status of Diplomats under Sec. 13 of Act of 1957, and

8 CFR § 245.3, Adjustment of A, E, or G to Nonimmigrant under 8 CFR 247.12(b).

An ICE Official can determine if a bond has been breached but that determination is appealable

to AAO. Previously, determinations on applications by schools (and revocation of thereof) for

permission to participate in the I-120 issuance and OPT/CPT determination authorities under the

INA were under the AAU/AAO of Legacy INS but have shifted to ICE (as mentioned above).

Powers Beyond AAO’s Authority:

The AAO cannot exercise appellate jurisdiction over additional matters on its own volition, or at

the request of an applicant or petitioner. As a "statement of general . . . applicability and future

effect designed to implement, interpret, or prescribe law or policy," the creation of appeal rights

for any additional adjustment application denials meets the definition of an agency "rule" under

section 551 of the Administrative Procedure Act (APA) [5 USC § 551].

The granting of appeal rights has a "substantive legal effect" because it is creating a new

administrative "right," and it involves an economic interest (the fee and costs). "If a rule creates

rights, assigns duties, or imposes obligations, the basic tenor of which is not already outlined in

the law itself, then it is substantive." La Casa Del Convaleciente v. Sullivan, 965 F.2d 1175, 1178

(1st Cir. 1992) All substantive or legislative rule making requires notice and comment in the

Federal Register.

―The AAO, like the Board of Immigration Appeals, is without authority to apply the doctrine of

equitable estoppel so as to preclude a component part of USCIS from undertaking a lawful

3 http://www.uscis.gov/err/A1%20-%20Certification/Decisions_Issued_in_2010/Apr262010_01A1245.pdf 4 Id.

Page 16

course of action that it is empowered to pursue by statute or regulation. See Matter of

Hernandez-Puente, 20 I&N Dec. 335, 338 (BIA 1991). Res judicata and estoppel are equitable

forms of relief that are available only through the courts. The jurisdiction of the AAO is limited

to that authority specifically granted to it by the Secretary of the United States Department of

Homeland Security. See DHS Delegation Number 0150.1 (effective March 1, 2003); see also 8

C.F.R. § 103.1 (f)(3)(E)(iii) (as in effect on February 28, 2003) [and subsequent amendments,

this includes N-600‘s]. Accordingly, the AAO has no authority to address the petitioner's

equitable estoppel and res judicata claims.‖5

―Even if the applicant's assertions regarding the delays in his father's naturalization and his own

application were true, the AAO is without authority to apply the doctrine of equitable estoppel to

approve an application for derivative citizenship nunc pro tunc.‖6

(B) Meaning of affected party. For purposes of this section and §§103.4 and 103.5 of this part,

affected party (in addition to the Service) means the person or entity with legal standing in a

proceeding. It does not include the beneficiary of a visa petition. An affected party may be

represented by an attorney or representative in accordance with part 292 of this chapter.

(C) Record of proceeding. An appeal and any cross-appeal or briefs become part of the record of

proceeding.

(D) Appeal filed by Service officer in case within jurisdiction of Board. If an appeal is filed by a

Service officer, a copy must be served on the affected party.

(iv) Function of Administrative Appeals Unit (AAU). The AAU is the appellate body which

considers cases under the appellate jurisdiction of the Associate Commissioner, Examinations.

(v) Summary dismissal. An officer to whom an appeal is taken shall summarily dismiss any

appeal when the party concerned fails to identify specifically any erroneous conclusion of law or

statement of fact for the appeal. The filing by an attorney or representative accredited under 8

CFR 292.2(d) of an appeal which is summarily dismissed under this section may constitute

frivolous behavior as defined in 8 CFR 292.3(a)(15). Summary dismissal of an appeal under

§103.3(a)(1)(v) in no way limits the other grounds and procedures for disciplinary action against

attorneys or representatives provided in 8 CFR 292.2 or in any other statute or regulation.

(2) AAU appeals in other than special agricultural worker and legalization cases —

(i) Filing appeal. The affected party shall file an appeal on Form I–290B. Except as otherwise

provided in this chapter, the affected party must pay the fee required by §103.7 of this part. The

affected party shall file the complete appeal including any supporting brief with the office where

the unfavorable decision was made within 30 days after service of the decision.

5 A non-precedent AAO Administrative Decision pertaining to an I-140, Immigrant Petition for Alien Worker, as a Member of the Professions

Holding an advanced Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration and Nationality Act, 8 U.S.C.§

1153(b)(2). See: Apr282009_01B5203.pdf on www.uscis.gov

6 From the most recent non-precedent AAO Decision on an N-600 at: May192010_01E2309.pdf at www.uscis.gov

Page 17

(ii) Reviewing official. The official who made the unfavorable decision being appealed shall

review the appeal unless the affected party moves to a new jurisdiction. In that instance, the

official who has jurisdiction over such a proceeding in that geographic location shall review it.

(iii) Favorable action instead of forwarding appeal to AAU. The reviewing official shall decide

whether or not favorable action is warranted. Within 45 days of receipt of the appeal, the

reviewing official may treat the appeal as a motion to reopen or reconsider and take favorable

action. However, that official is not precluded from reopening a proceeding or reconsidering a

decision on his or her own motion under §103.5(a)(5)(i) of this part in order to make a new

decision favorable to the affected party after 45 days of receipt of the appeal.

(iv) Forwarding appeal to AAU. If the reviewing official will not be taking favorable action or

decides favorable action is not warranted, that official shall promptly forward the appeal and the

related record of proceeding to the AAU in Washington, DC.

(v) Improperly filed appeal —

(A) Appeal filed by person or entity not entitled to file it —

( 1 ) Rejection without refund of filing fee. An appeal filed by a person or entity not entitled to

file it must be rejected as improperly filed. In such a case, any filing fee the Service has accepted

will not be refunded.

( 2 ) Appeal by attorney or representative without proper Form G–28 —

( i ) General. If an appeal is filed by an attorney or representative without a properly executed

Notice of Entry of Appearance as Attorney or Representative (Form G–28) entitling that person

to file the appeal, the appeal is considered improperly filed. In such a case, any filing fee the

Service has accepted will not be refunded regardless of the action taken.

( ii ) When favorable action warranted. If the reviewing official decides favorable action is

warranted with respect to an otherwise properly filed appeal, that official shall ask the attorney or

representative to submit Form G–28 to the official's office within 15 days of the request. If Form

G–28 is not submitted within the time allowed, the official may, on his or her own motion, under

§103.5(a)(5)(i) of this part, make a new decision favorable to the affected party without notifying

the attorney or representative.

( iii ) When favorable action not warranted. If the reviewing official decides favorable action is

not warranted with respect to an otherwise properly filed appeal, that official shall ask the

attorney or representative to submit Form G–28 directly to the AAU. The official shall also

forward the appeal and the relating record of proceeding to the AAU. The appeal may be

considered properly filed as of its original filing date if the attorney or representative submits a

properly executed Form G–28 entitling that person to file the appeal.

Page 18

(B) Untimely appeal —

( 1 ) Rejection without refund of filing fee. An appeal which is not filed within the time allowed

must be rejected as improperly filed. In such a case, any filing fee the Service has accepted will

not be refunded.

( 2 ) Untimely appeal treated as motion. If an untimely appeal meets the requirements of a

motion to reopen as described in §103.5(a)(2) of this part or a motion to reconsider as described

in §103.5(a)(3) of this part, the appeal must be treated as a motion, and a decision must be made

on the merits of the case.

(vi) Brief. The affected party may submit a brief with Form I–290B.

(vii) Additional time to submit a brief. The affected party may make a written request to the

AAU for additional time to submit a brief. The AAU may, for good cause shown, allow the

affected party additional time to submit one.

(viii) Where to submit supporting brief if additional time is granted. If the AAU grants additional

time, the affected party shall submit the brief directly to the AAU.

(ix) Withdrawal of appeal. The affected party may withdraw the appeal, in writing, before a

decision is made.

(x) Decision on appeal. The decision must be in writing. A copy of the decision must be served

on the affected party and the attorney or representative of record, if any.

(3) Denials and appeals of special agricultural worker and legalization applications and

termination of lawful temporary resident status under sections 210 and 245A.

(i) Whenever an application for legalization or special agricultural worker status is denied or the

status of a lawful temporary resident is terminated, the alien shall be given written notice setting

forth the specific reasons for the denial on Form I–692, Notice of Denial. Form I–692 shall also

contain advice to the applicant that he or she may appeal the decision and that such appeal must

be taken within 30 days after service of the notification of decision accompanied by any

additional new evidence, and a supporting brief if desired. The Form I–692 shall additionally

provide a notice to the alien that if he or she fails to file an appeal from the decision, the Form I–

692 will serve as a final notice of ineligibility.

(ii) Form I–694, Notice of Appeal, in triplicate, shall be used to file the appeal, and must be

accompanied by the appropriate fee. Form I–694 shall be furnished with the notice of denial at

the time of service on the alien.

(iii) Upon receipt of an appeal, the administrative record will be forwarded to the Administrative

Appeals Unit as provided by §103.1(f)(2) of this part for review and decision. The decision on

the appeal shall be in writing, and if the appeal is dismissed, shall include a final notice of

ineligibility. A copy of the decision shall be served upon the applicant and his or her attorney or

Page 19

representative of record. No further administrative appeal shall lie from this decision, nor may

the application be filed or reopened before an immigration judge or the Board of Immigration

Appeals during exclusion or deportation proceedings.

(iv) Any appeal which is filed that:

(A) Fails to state the reason for appeal;

(B) Is filed solely on the basis of a denial for failure to file the application for adjustment of

status under section 210 or 245A in a timely manner; or

(C) Is patently frivolous; will be summarily dismissed. An appeal received after the thirty (30)

day period has tolled will not be accepted for processing.

(4) Denials and appeal of Replenishment Agricultural Worker petitions and waivers and

termination of lawful temporary resident status under section 210A.

(i) Whenever a petition for Replenishment Agricultural Worker status, or a request for a waiver

incident to such filing, is denied in accordance with the provisions of part 210a of this title, the

alien shall be given written notice setting forth the specific reasons for the denial on Form I–692,

Notice of Denial. Form I–692 shall also contain advice to the alien that he or she may appeal the

decision and that such appeal must be taken within thirty (30) days after service of the

notification of decision accompanied by any additional new evidence, and a supporting brief if

desired. The Form I–692 shall additionally provide a notice to the alien that if he or she fails to

file an appeal from the decision, the Form I–692 shall serve as a final notice of ineligibility.

(ii) Form I–694, Notice of Appeal, in triplicate, shall be used to file the appeal, and must be

accompanied by the appropriate fee. Form I–694 shall be furnished with the notice of denial at

the time of service on the alien.

(iii) Upon receipt of an appeal, the administrative record will be forwarded to the Administrative

Appeals Unit as provided by §103.1(f)(2) of this part for review and decision. The decision on

the appeal shall be in writing, and if the appeal is dismissed, shall include a final notice of

ineligibility. A copy of the decision shall be served upon the petitioner and his or her attorney or

representative of record. No further administrative appeal shall lie from this decision, nor may

the petition be filed or reopened before an immigration judge or the Board of Immigration

Appeals during exclusion or deportation proceedings.

(iv) Any appeal which is filed that: Fails to state the reason for the appeal; is filed solely on the

basis of a denial for failure to file the petition for adjustment of status under part 210a of this title

in a timely manner; or is patently frivolous, will be summarily dismissed. An appeal received

after the thirty (30) day period has tolled will not be accepted for processing.

Page 20

(b) Oral argument regarding appeal before AAU —

(1) Request. If the affected party desires oral argument, the affected party must explain in writing

specifically why oral argument is necessary. For such a request to be considered, it must be

submitted within the time allowed for meeting other requirements.

(2) Decision about oral argument. The Service has sole authority to grant or deny a request for

oral argument. Upon approval of a request for oral argument, the AAU shall set the time, date,

place, and conditions of oral argument.

(c) Service precedent decisions. The Secretary of Homeland Security, or specific officials of the

Department of Homeland Security designated by the Secretary with the concurrence of the

Attorney General, may file with the Attorney General decisions relating to the administration of

the immigration laws of the United States for publication as precedent in future proceedings, and

upon approval of the Attorney General as to the lawfulness of such decision, the Director of the

Executive Office for Immigration Review shall cause such decisions to be published in the same

manner as decisions of the Board and the Attorney General. In addition to Attorney General and

Board decisions referred to in §1003.1(g) of chapter V, designated Service decisions are to

serve as precedents in all proceedings involving the same issue(s). Except as these decisions may

be modified or overruled by later precedent decisions, they are binding on all Service employees

in the administration of the Act. Precedent decisions must be published and made available to the

public as described in §103.9(a) of this part.

While the AAO has tried to confine itself to the ―appeals‖ regulations at 8 CFR § 103.3, and the

―motion‖ regulations at 8 CFR § 103.5, of particular use in its decisions, AAO also relies

liberally upon 8 CFR § 103.2 ―Applications, petitions, and other documents‖ and 8 CFR § 103.4

―Certifications‖. Also, there are benefit petition and application specific regulations that

cannot be ignored (more to follow). In addition to the regulations used by USCIS to adjudicate

cases, other regulations and Policies specific to sister DHS agencies have some interplay as well.

CBP’s 8 CFR § 238.1 [same as § 1238.1] Proceedings under section 238(b) of the Act.

(a) Definitions. As used in this part the term:

Deciding Service officer means a district director, chief patrol agent, or another immigration

officer designated by a district director, chief patrol agent, the Deputy Executive Associate

Commissioner for Detention and Removal, or the Director of the Office of Juvenile Affairs, so

long as that person is not the same person as the Issuing Service Officer.

Issuing Service officer means any Service officer listed in §1239.1 of this chapter as authorized

to issue notices to appear.

(b) Preliminary consideration and Notice of Intent to Issue a Final Administrative Deportation

Order; commencement of proceedings —

Page 21

(1) Basis of Service charge. An issuing Service officer shall cause to be served upon an alien a

Form I–851, Notice of Intent to Issue a Final Administrative Deportation Order (Notice of

Intent), if the officer is satisfied that there is sufficient evidence, based upon questioning of the

alien by an immigration officer and upon any other evidence obtained, to support a finding that

the individual:

(i) Is an alien;

(ii) Has not been lawfully admitted for permanent residence, or has conditional permanent

resident status under section 216 of the Act;

(iii) Has been convicted (as defined in section 101(a)(48) of the Act and as demonstrated by any

of the documents or records listed in §1003.41 of this chapter) of an aggravated felony and such

conviction has become final; and

(iv) Is deportable under section 237(a)(2)(A)(iii) of the Act, including an alien who has neither

been admitted nor paroled, but who is conclusively presumed deportable under section

237(a)(2)(A)(iii) by operation of section 238(c) of the Act (―Presumption of Deportability‖).

(2) Notice.

(i) Removal proceedings under section 238(b) of the Act shall commence upon personal service

of the Notice of Intent upon the alien, as prescribed by §§103.5a(a)(2) and 103.5a(c)(2) of 8 CFR

chapter I. The Notice of Intent shall set forth the preliminary determinations and inform the alien

of the Service's intent to issue a Form I–851A, Final Administrative Removal Order, without a

hearing before an immigration judge. The Notice of Intent shall constitute the charging

document. The Notice of Intent shall include allegations of fact and conclusions of law. It shall

advise that the alien: has the privilege of being represented, at no expense to the government, by

counsel of the alien's choosing, as long as counsel is authorized to practice in removal

proceedings; may request withholding of removal to a particular country if he or she fears

persecution or torture in that country; may inspect the evidence supporting the Notice of Intent;

may rebut the charges within 10 calendar days after service of such Notice (or 13 calendar days

if service of the Notice was by mail).

(ii) The Notice of Intent also shall advise the alien that he or she may designate in writing, within

the rebuttal period, the country to which he or she chooses to be deported in accordance with

section 241 of the Act, in the event that a Final Administrative Removal Order is issued, and that

the Service will honor such designation only to the extent permitted under the terms, limitations,

and conditions of section 241 of the Act.

(iii) The Service must determine that the person served with the Notice of Intent is the person

named on the notice.

(iv) The Service shall provide the alien with a list of available free legal services programs

qualified under 8 CFR part 1003 and organizations recognized pursuant to 8 CFR part 1292,

located within the district or sector where the Notice of Intent is issued.

Page 22

(v) The Service must either provide the alien with a written translation of the Notice of Intent or

explain the contents of the Notice of Intent to the alien in the alien's native language or in a

language that the alien understands.

(c) Alien's response —

(1) Time for response. The alien will have 10 calendar days from service of the Notice of Intent

or 13 calendar days if service is by mail, to file a response to the Notice of Intent. In the

response, the alien may: designate his or her choice of country for removal; submit a written

response rebutting the allegations supporting the charge and/or requesting the opportunity to

review the Government's evidence; and/or submit a statement indicating an intention to request

withholding of removal under 8 CFR 1208.16 of this chapter, and/or request in writing an

extension of time for response, stating the specific reasons why such an extension is necessary.

(2) Nature of rebuttal or request to review evidence.

(i) If an alien chooses to rebut the allegations contained in the Notice of Intent, the alien's written

response must indicate which finding(s) are being challenged and should be accompanied by

affidavit(s), documentary information, or other specific evidence supporting the challenge.

(ii) If an alien's written response requests the opportunity to review the Government's evidence,

the Service shall serve the alien with a copy of the evidence in the record of proceeding upon

which the Service is relying to support the charge. The alien may, within 10 calendar days

following service of the Government's evidence (13 calendar days if service is by mail), furnish a

final response in accordance with paragraph (c)(1) of this section. If the alien's final response is a

rebuttal of the allegations, such a final response should be accompanied by affidavit(s),

documentary information, or other specific evidence supporting the challenge.

(d) Determination by deciding Service officer —

(1) No response submitted or concession of deportability. If the deciding Service officer does not

receive a timely response and the evidence in the record of proceeding establishes deportability

by clear, convincing, and unequivocal evidence, or if the alien concedes deportability, then the

deciding Service officer shall issue and cause to be served upon the alien a Final Administrative

Removal Order that states the reasons for the deportation decision. The alien may, in writing,

waive the 14-day waiting period before execution of the final order of removal provided in a

paragraph (f) of this section.

(2) Response submitted —

(i) Insufficient rebuttal; no genuine issue of material fact. If the alien timely submits a rebuttal to

the allegations, but the deciding Service officer finds that deportability is established by clear,

convincing, and unequivocal evidence in the record of proceeding, the deciding Service officer

shall issue and cause to be served upon the alien a Final Administrative Removal Order that

states the reasons for the decision of deportability.

Page 23

(ii) Additional evidence required.

(A) If the deciding Service officer finds that the record of proceeding, including the alien's timely

rebuttal, raises a genuine issue of material fact regarding the preliminary findings, the deciding

Service officer may either obtain additional evidence from any source, including the alien, or

cause to be issued a notice to appear to initiate removal proceedings under section 240 of the

Act. The deciding Service officer may also obtain additional evidence from any source,

including the alien, if the deciding Service officer deems that such additional evidence may aid

the officer in the rendering of a decision.

(B) If the deciding Service officer considers additional evidence from a source other than the

alien, that evidence shall be made a part of the record of proceeding, and shall be provided to the

alien. If the alien elects to submit a response to such additional evidence, such response must be

filed with the Service within 10 calendar days of service of the additional evidence (or 13

calendar days if service is by mail). If the deciding Service officer finds, after considering all

additional evidence, that deportability is established by clear, convincing, and unequivocal

evidence in the record of proceeding, the deciding Service officer shall issue and cause to be

served upon the alien a Final Administrative Removal Order that states the reasons for the

decision of deportability.

(iii) Conversion to proceedings under section 240 of the Act. If the deciding Service officer finds

that the alien is not amenable to removal under section 238 of the Act, the deciding Service

officer shall terminate the expedited proceedings under section 238 of the Act and shall, where

appropriate, cause to be issued a notice to appear for the purpose of initiating removal

proceedings before an immigration judge under section 240 of the Act.

(3) Termination of proceedings by deciding Service officer. Only the deciding Service officer

may terminate proceedings under section 238 of the Act, in accordance with this section.

(e) Proceedings commenced under section 240 of the Act. In any proceeding commenced under

section 240 of the Act which is based on deportability under section 237 of the Act, if it appears

that the respondent alien is subject to removal pursuant to section 238 of the Act, the

immigration judge may, upon the Service's request, terminate the case and, upon such

termination, the Service may commence administrative proceedings under section 238 of the

Act. However, in the absence of any such request, the immigration judge shall complete the

proceeding commenced under section 240 of the Act.

(f) Executing final removal order of deciding Service officer —

(1) Time of execution. Upon the issuance of a Final Administrative Removal Order, the Service

shall issue a Warrant of Removal in accordance with §1241.2 of this chapter; such warrant shall

be executed no sooner than 14 calendar days after the date the Final Administrative Removal

Order is issued, unless the alien knowingly, voluntarily, and in writing waives the 14-day period.

Page 24

(2) Country to which alien is to be removed. The deciding Service officer shall designate the

country of removal in the manner prescribed by section 241 of the Act.

(3) Withholding of removal. If the alien has requested withholding of removal under §1208.16 of

this chapter, the deciding officer shall, upon issuance of a Final Administrative Removal Order,

immediately refer the alien's case to an asylum officer to conduct a reasonable fear determination

in accordance with §1208.31 of this chapter.

(g) Arrest and detention. At the time of issuance of a Notice of Intent or at any time thereafter

and up to the time the alien becomes the subject of a Warrant of Removal, the alien may be

arrested and taken into custody under the authority of a Warrant of Arrest issued by an officer

listed in §287.5(e)(2) of 8 CFR chapter I. The decision of the Service concerning custody or

bond shall not be administratively appealable during proceedings initiated under section 238 of

the Act and this part.

(h) Record of proceeding. The Service shall maintain a record of proceeding for judicial review

of the Final Administrative Removal Order sought by any petition for review. The record of

proceeding shall include, but not necessarily be limited to: the charging document (Notice of

Intent); the Final Administrative Removal Order (including any supplemental memorandum of

decision); the alien's response, if any; all evidence in support of the charge; and any admissible

evidence, briefs, or documents submitted by either party respecting deportability. The executed

duplicate of the Notice of Intent in the record of proceedings shall be retained as evidence that

the individual upon whom the notice for the proceeding was served was, in fact, the alien named

in the notice.

§ 244.10 Decision by the director or Administrative Appeals Unit (AAU).

(a) Temporary treatment benefits. The director shall grant temporary treatment benefits to the

applicant if the applicant establishes prima facie eligibility for Temporary Protected Status in

accordance with §244.5.

(b) Temporary Protected Status. Upon review of the evidence presented, the director may

approve or deny the application for Temporary Protected Status in the exercise of discretion,

consistent with the standards for eligibility in §§244.2, 244.3, and 244.4.

(c) Denial by director. The decision of the director to deny Temporary Protected Status, a waiver

of grounds of inadmissibility, or temporary treatment benefits shall be in writing served in

person or by mail to the alien's most recent address provided to the Service and shall state the

reason(s) for the denial. Except as otherwise provided in this section, the alien shall be given

written notice of his or her right to appeal a decision denying Temporary Protected Status. To

exercise such right, the alien shall file a notice of appeal, Form I–290B, with the director who

issued the denial. If an appeal is filed, the administrative record shall be forwarded to the AAU

for review and decision, pursuant to authority delegated in §103.1(f)(2), except as otherwise

provided in this section.

Page 25

(1) If the basis for the denial of the Temporary Protected Status constitutes a ground for

deportability or excludability which renders the alien ineligible for Temporary Protected Status

under §244.4 or inadmissible under §244.3(c), the decision shall include a charging document

which sets forth such ground(s).

(2) If such a charging document is issued, the alien shall not have the right to appeal the

director's decision denying Temporary Protected Status as provided in this subsection. The

decision shall also apprise the alien of his or her right to a de novo determination of his or her

eligibility for Temporary Protected Status in deportation or exclusion proceedings pursuant to

§§240.11 and 244.18.

(d) Decision by AAU. The decision of the AAU shall be in writing served in person, or by mail to

the alien's most recent address provided to the Service, and, if the appeal is dismissed, the

decision shall state the reason(s) for the denial.

(1) If the appeal is dismissed by the AAU under §240.18(b), the decision shall also apprise the

alien of his or her right to a de novo determination of eligibility for Temporary Protected Status

in deportation or exclusion proceedings.

(2) If the appeal is dismissed by the AAU, the director may issue a charging document if no

charging document is presently filed with the Immigration Court.

(3) If a charging document has previously been filed or is pending before the Immigration Court,

either party may move to recalendar the case after the decision by the AAU.

(e) Grant of temporary treatment benefits.

(1) Temporary treatment benefits shall be evidenced by the issuance of an employment

authorization document. The alien shall be given, in English and in the language of the

designated foreign state or a language that the alien understands, a notice of the registration

requirements for Temporary Protected Status and a notice of the following benefits:

(i) Temporary stay of deportation; and

(ii) Temporary employment authorization.

(2) Unless terminated under §244.13, temporary treatment benefits shall remain in effect until a

final decision has been made on the application for Temporary Protected Status.

(f) Grant of temporary protected status.

(1) The decision to grant Temporary Protected Status shall be evidenced by the issuance of an

alien registration document. For those aliens requesting employment authorization, the

employment authorization document will act as alien registration.

Page 26

(2) The alien shall be provided with a notice, in English and in the language of the designated

foreign state or a language that the alien understands, of the following benefits:

(i) The alien shall not be deported while maintaining Temporary Protected Status;

(ii) Employment authorization;

(iii) The privilege to travel abroad with the prior consent of the director as provided in §244.15;

(iv) For the purposes of adjustment of status under section 245 of the Act and change of

status under section 248 of the Act, the alien is considered as being in, and maintaining,

lawful status as a nonimmigrant while the alien maintains Temporary Protected Status.

NOTE: Matter of Sosa, 25 I&N Dec. 391 (BIA 2010)

(1) A grant of Temporary Protected Status (―TPS‖) waives certain grounds of

inadmissibility or deportability solely for the limited purpose of permitting an alien to

remain and work temporarily in the United States for the period of time that TPS is

effective.

(2) It is not proper to terminate an alien‘s removal proceedings based on a grant of TPS.

―The Immigration Judge determined that the grant of TPS rendered the respondent admissible, or

somehow eliminated the charge of inadmissibility, and, therefore, that she was not properly

subject to removal proceedings. The Act does not provide for such a result. There is nothing in

the language of the statute to indicate that a grant of TPS renders an alien admissible to the

United States. According to section 244(c)(5) of the Act, ―Nothing in this section shall be

construed as authorizing an alien to apply for admission to, or to be admitted to, the United

States in order to apply for temporary protected status under this section.‖ Moreover, ―[d]uring a

period in which an alien is granted temporary protected status . . . the alien shall not be

considered to be permanently residing in the United States under color of law.‖ Section

244(f)(1) of the Act (emphasis added). Thus, a grant of TPS does not affect an alien‘s

admissibility or inadmissibility for purposes of the Immigration and Nationality Act generally.‖

At 392

―As noted previously, the parties in this case initially agreed to administrative closure, which ―is

used to temporarily remove a case from an Immigration Judge‘s calendar or from the Board‘s

docket.‖ Matter of Gutierrez-Lopez, 21 I&N Dec. 479, 480 (BIA 1996). This approach is

consistent with the nature of TPS. On remand, if the respondent does not want the proceedings to

continue, she may request that her case be administratively closed, which requires agreement of

both parties. Id. However, if the respondent does not make such a request, or does not agree

to administrative closure, the proceedings should continue, and the respondent should be

provided an opportunity to apply for any relief for which she may be eligible. See Matter of

Quintero, 18 I&N Dec. 348, 350 (BIA 1982). If the proceedings continue and the respondent

does not apply, or is not eligible, for relief from removal, then an order of removal should be

entered. See 8 C.F.R. § 1240.12 (2010). However, any such removal order could not be executed

Page 27

during the period in which the respondent‘s TPS status is valid. Section 244(a)(1)(A) of the

Act.‖At 396

(v) An alien eligible to apply for Temporary Protected Status under §244.2(f)(2), who was

prevented from filing a late application for registration because the regulations failed to provide

him or her with this opportunity, will be considered to have been maintaining lawful status as a

nonimmigrant until the benefit is granted.

(3) The benefits contained in the notice are the only benefits the alien is entitled to under

Temporary Protected Status.

(4) Such notice shall also advise the alien of the following:

(i) The alien must remain eligible for Temporary Protected Status;

(ii) The alien must register annually with the district office or service center having jurisdiction

over the alien's place of residence; and

(iii) The alien's failure to comply with paragraphs (f)(4) (i) or (ii) of this section will result in the

withdrawal of Temporary Protected Status, including work authorization granted under this

Program, and may result in the alien's deportation from the United States.

AAO also looks to the application and petition specific regulations such as 8 CFR §§ 103.5b,

103.6, 204, 205, 212, 214, 301, 320, 322, 324, 338, 341, etc... One in particular is § 204.6 (m)

which is a pre-existing regulation with prospective application to the newest USCIS application

form, the I-924. Due to the change in processing required for the newest form, the controlling

regulations are in need of updating. The following is a suggestion as to specific changes that

would help create a fair and equitable framework for the initial decision-making and

administrative agency appellate review and motions pertaining to the form I-924.

Suggested changes to 8 CFR § 204.6(m): Regional Center Regulations.

[(m)(1) has no change, (2) has a minor edit, and (3) has a series of edits and

adds one new clause]

(m) Requirements for Regional Centers…….

(1) Scope [No Changes]

(2) Number of immigrant visas allocated. The annual allocation of the visas available under the

Immigrant Investor Pilot Program is set at [CHANGE TO: ―3000‖] for each [DELETE: ―of the

five‖] fiscal year [DELETE: ―s‖ AND ADD: ―authorized‖] [DELETE: ―commencing on October

1, 1993‖].

Page 28

(3) Requirements for Regional Centers. Each Regional Center wishing to participate in the

Immigrant Investor Pilot Program shall submit [ADD ―a form designated for the purpose,

supported by,‖] a proposal to the [DELTE: ―Assistant Commissioner for Adjudications‖

CHANGE TO: ―Service Center Director‖], which:

(i) Clearly describes how the Regional Center focuses on a geographical region of the

United States, and how it will promote economic growth through [DELETE: ―increased

export sales,‖] improved regional productivity, job creation, and increased domestic

capital investment;

(ii) Provides in verifiable detail how jobs will be created indirectly [DELETE: ―through

increased exports‖ AND ADD: ―through submission of a viable job creation prediction

based on a credible comprehensive business plan(s)‖];

(iii) Provides a detailed statement regarding the amount and source of capital which has

been committed to the Regional Center, as well as a description of the promotional

efforts taken and planned by the sponsors of the Regional Center;

(iv) Contains a detailed prediction regarding the manner in which the Regional Center

will have a positive impact on the regional or national economy in general as reflected by

such factors as increased household earnings, greater demand for business services,

utilities, maintenance and repair, and construction both within and without the Regional

Center; [DELETE: ―and‖]

(v) Is supported by economically or statistically valid forecasting tools, including, but not

limited to, feasibility studies, [ADD: ―sound economic‖ analyses of [DELETE: ―foreign

and domestic‖] markets for the goods or services [DELETE: ―to be exported, and/or‖

AND ADD: ―and may include‖] multiplier tables [DELETE ―.‖ AND ADD: ―and;‖]

[ADD:

(vi) Explains in detail the method(s) and mechanism(s), and written instruments for

investment and include standard business documentation anticipated to be submitted by

individual investors with their individual petitions such as, but not limited to any

draft/exemplar: operating agreement, partnership agreement, subscription agreement,

stock purchase agreement, offering letter or memorandum, confidential private placement

memorandum, and/or any similar offering made in writing to an immigrant investor

through the Regional Center; any draft memorandum of understanding, interagency

agreement, contract, letter of intent, advisory agreement, or similar agreement to be

entered into with any other party, agency or organization to engage in activities on behalf

of or in the name of the Regional Center.]

Page 29

[(m)(4) is a wholesale rewrite and significant expansion- DELETE ALL AND

REPLACE WITH:]

(4) Submission of proposals to participate in the Immigrant Investor Pilot Program.

[An entity seeking approval to participate in the Immigrant Investor Pilot Program shall submit a

form I-924, Application For Regional Center Under the Immigrant Investor Pilot Program, as

per the form instructions with the specified fee and required initial evidence. Regional Centers

that have been approved by the Service Center Director will be eligible to participate in the

Immigrant Investor Pilot Program.

(i) Entity means: Any legal entity, including, but not limited to, a corporation,

partnership, joint venture, governmental body, agency, public-private cooperative, or

association, including an authorized principal, officer or employee of such entity, or a

qualified individual acting directly in the interest thereof, upon submission of a properly

executed form G-28, Notice of Entry of Appearance as Attorney or Accredited

Representative. Such an entity must actually exist in accordance with applicable law

including but not limited to: authorized by statute, governmental rule, regulation,

ordinance, by-law, or constitutional or charter provision; incorporation; registration;

licensure; or any legal means of filing for status afforded under law of the place of its

existence within the United States, as defined in INA § 101 (a) (38).

(ii) Form. The initial and/or amendment application form, supplemental form, associated

instructions and current filing and fee information, as well as any updates to them will be

available on the agency website or through the National Customer Service Center.

(iii) Initial required evidence shall consist of proof of the entity‘s lawful authority to file

as such entity such as, but not limited to: articles or certificate of incorporation,

registration, license or a statement of authority under a charter, ordinance or any other

lawful authority; and the proposal with the basic supporting documentation described in

subparagraph (3) of this paragraph (m).

(iv) Perfection of Application. Initial evidence beyond the bare minimum required by

clause (4)(i), above, shall be subject to supplementation, modification, and change after

submission through any USCIS issued Request for Evidence (RFE) or a Notice of Intent

to Deny (NOID) and the applicant‘s reply and/or rebuttal thereto.

(v) Prima Facie Ineligibility. Initial submissions that appear not to be credible or viable,

or based on flawed assumptions or information may be issued a NOID with an

opportunity to rebut in the same manner as in (iv); or may be allowed to withdraw rather

than be issued a formal denial. Provided that: If a finding of fraud is made, the

Page 30

application package is subject to referral to FDNS, ICE, IRS, OFAC, SEC, the

Department of Justice, or any appropriate law enforcement agency for further

investigation on any matter of concern.

(vi) Effect of Withdrawal; Authorized Late Motion. Such a withdrawn application as

anticipated in clause (v), above, shall be retained on hand and readily available to USCIS

for a period of at least one year. Following authorized withdrawal, the same entity shall

be afforded the opportunity to reopen and reconsider, and to further supplement the prior

submission, within one year, by submitting an authorized late Motion accompanied by a

form I-290B, Notice of Appeal or Motion with current fee as of the date of such filing,

and a copy of the withdrawal acknowledgement authorizing such Motion. The filing of

such a Motion will be afforded priority in processing based on the filing date of the prior

application. Any Motion filed beyond one year from the date of authorized withdrawal

will be summarily dismissed as untimely filed, without refund of fee.

(vii) New Application. A completely new application apart and separate from any prior

submission from the same entity may be filed based on a different investment scheme,

vehicle, and/or premise by filing a new application with full fee. No processing priority

will be given to such an application. Provided that: No evidence from the prior filing in

possession of USCIS may, or will, be considered or incorporated into the new filing or

considered by USCIS in its decision-making except as it may indicate evidence of willful

fraud, misrepresentation, or concealment of a material fact.]

[(m)(5) is a wholesale rewrite and significant expansion DELETE all and

REPLACE with:

(5) Decision to Participate in the Immigrant Investor Pilot Program.

(i) Prompt Decision on Initial Application. The Service Center Director shall notify the

Regional Center applicant of his or her decision on the request for approval to participate

in the Immigrant Investor Pilot Program under subparagraph (3) of this paragraph (m)

and § 103.2 of this chapter.

(A) If approved, the Approval Notice will describe the geographic area covered,

the specific industries or types of businesses approved for investment and will

make specific reference to the job projection and economic impact model and/or

methodology that was submitted and reviewed for acceptability. The written

Approval Notice will inform the Regional Center of its recordkeeping and

reporting responsibilities and prohibition against making substantive material

changes to previously submitted-and-reviewed standard written business

Page 31

documents and/or business plans and/or investment instruments anticipated to be

submitted with individual investor petitions.

(B) An applicant can withdraw an application in accordance with, and under the

same conditions as described in subparagraph (4) of this paragraph (m).

(C) If the application is denied, the applicant will be informed of the reason(s) for

the denial and of the applicant‘s right of appeal to the Administrative Appeals

Office (AAO). The Service Center Director will issue a detailed analysis of the

law and facts of the case in support of its decision as contemplated by 5 USC §

557(c). The written Denial Notice will inform the applicant of the reasons for

denial along with notification of motion and appeal rights. The procedures for

appeal may be the same as those contained in § 103.3 of this chapter, or as

modified herein, while motions may be treated as described in § 103.5 of this

chapter, or as modified herein, as applicable.

(ii) Prompt Decision on Amendment Application. The Service Center Director shall notify

the Regional Center applicant of his or her decision on the request to amend or modify its

participation in the Immigrant Investor Pilot Program under subparagraph (3) of this

paragraph (m) and § 103.2 of this chapter.

(A) If approved, the Approval Notice will add to, subtract from, or otherwise

modify the prior Approval Notice and include the specific changes made by the

amendment to the Regional Center‘s previously authorized participation in the

Immigrant Investor Program.

(B) An applicant can withdraw an application in accordance with, and under the

same conditions as described in subparagraph (4) of this paragraph (m).

(C) The Denial of a Proposed Amendment does not void the prior Approval

Notice unless that participation is officially terminated pursuant to subparagraph

(6) of this paragraph (m). If the amendment application is denied, the Amendment

Denial Notice shall inform the applicant of the reason(s) for the denial and of the

applicant‘s right of appeal to the Administrative Appeals Office (AAO). The

Denial Notice shall be restricted to the amendment only, and will inform the

applicant of motion and appeal rights. The Service Center Director will issue a

detailed analysis of the law and facts of the case in support of its decision as

contemplated by 5 USC § 557(c)7. The procedures for appeal may be the same as

7 Paragraph following (c)(3):

Page 32

those contained in § 103.3 of this chapter, or as modified herein, while motions

may be treated as described in § 103.5 of this chapter, or as modified herein, as

applicable.

(iii) Initial Agency Review of Appeal or Motion. The Service Center Director shall

expeditiously and thoroughly review any appeal or motion of a denied Regional Center

Initial or Amendment Application. If the applicant indicates that the brief and/or

additional evidence will follow submission of the I-290B, the case may set be aside until

the additional submission has been received or the allotted time has passed. The applicant

is only allowed the time specified for a single submission of the brief and/or additional

evidence. No extensions of time shall be granted by the Service Center Director in the

context of initial review of an Appeal or Motion.

(A) Summary Dismissal Option. If no brief or additional evidence has been

submitted within the time allowed, the Service Center Director may summarily

dismiss an unsupported and meritless Appeal or Motion in accordance with §

103.3 (a)(1)(v) of this chapter and restrict further review of that summarily

dismissed case to renewed right of appeal only, with no further motion option; or

make and issue a new decision based on the record as altered by any statement on

the I-290B and any evidence initially submitted with the I-290B Motion and

restrict further review of that re-denied case to renewed right of appeal only, with

no further motion option; or certify the decision to the AAO in accordance with

§ 103.4 of this chapter when the case involves an unusually complex or novel

issue of law or fact, or matter of first impression. Any such subsequently filed

restricted appeal shall be immediately forwarded to the AAO, without the detailed

review afforded to an initial submission for agency review.

(B) Favorable Initial Decision on Appeal or Motion. The Service Center Director

shall review any appeal or motion and if the case is approvable as submitted, shall

approve the application and issue the decision; or certify the decision to the AAO

in accordance with § 103.4 of this chapter when the case involves an unusually

complex or novel issue of law or fact, or matter of first impression.

(C) Unfavorable Initial Decision on Appeal. If the initial submission for review is

denoted as an appeal but is not approvable as submitted, but cannot be summarily

The record shall show the ruling on each finding, conclusion, or exception presented. All decisions, including initial,

recommended, and tentative decisions, are a part of the record and shall include a statement of-

(A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion

presented on the record; and

(B) the appropriate rule, order, sanction, relief, or denial thereof.

Page 33

dismissed, the appeal and complete application receipt file shall be forwarded to

the AAO.

(D) Unfavorable Initial Decision on Motion. If the initial submission for review is

denoted as a motion but is not approvable as filed, the Service Center Director

may either, dismiss the motion and restrict further review to renewed right of

appeal only, with no further motion option; or certify the decision to the AAO in

accordance with § 103.4 of this chapter when the case involves an unusually

complex or novel issue of law or fact, or matter of first impression. The Service

Center Director will issue a detailed analysis of the law and facts of the case in

support of its decision but may incorporate the prior decision by reference. Any

such subsequently filed restricted appeal shall be immediately forwarded to the

AAO, without the detailed review afforded to an initial submission on review.

(iv) AAO Review of Regional Center Application. Unless the Chief of the Administrative

Appeals Office has specifically delegated authority to a different USCIS Officer than the

Officer who rendered the initial decision, who is a journeyman level adjudicator or higher

at the Service Center to further develop a particular case, these procedures are reserved

for use by the reviewing Appeals Officer within AAO. Any such delegated Reviewing

Officer is prohibited from discussing the case with the initial deciding Officer.

(A) Basic Review. The Reviewing Officer shall have the authority and discretion

to review the application for Regional Center Designation and any evidence

already on record, and either to affirm the findings and determination of the

original adjudicating officer or to modify or re-determine the original decision in

whole or in part.

(B) Availability of Additional Records. The Reviewing Officer shall also have the

discretion to review any administrative record which was created as part of the

adjudication procedures as well as other USCIS files and reports, including VIBE,

or outside sources of information and databases, including internet sources.

(C) Request for evidence or testimony; independent inquiry or investigation in the

course of an Administrative Appeal of a denial of a benefit under the INA.

(1) The Appeals Officer or, Service Center Officer delegated specific

authority by the Chief of the AAO, may request specific evidence, receive

new evidence or interview the applicant and witnesses, in-person or

telephonically, and take such additional testimony as may be deemed

relevant to the applicant's eligibility for Designation as a Regional Center

Page 34

and may consider any additional evidence that the applicant seeks to

provide, within a reasonable period of time, before a decision is made.

Any derogatory information, is subject to disclosure in accordance with

§ 103.2 (b) (16) of this chapter, or as hereafter amended, or modified in

the interests of national security.

(2) Any Appeals Officer or, Service Center Officer delegated specific

authority by the Chief of the AAO, who is or may reasonably be expected

to be involved in the decisional process who receives, or who makes or

knowingly causes to be made, a communication ordinarily prohibited by

this 5 USC § 557 shall place within the record of the proceeding:

(i) all such written communications;

(ii) memoranda stating the substance of all such oral

communications;

(iii) all written responses, and memoranda stating the substance of

all oral responses, to the materials described in clauses (i) and (ii)

of this subparagraph;

(v) standardized sworn statements will suffice as documentation of

in-person communication;

(vi) telephonic interviews that may be recorded with consent of

both (or all) parties; and

(vii) non-redacted e-mail directly pertaining to the case will be

incorporated into the record.

(D) Flexibility in standard of review. Based upon the complexity of the issues to

be reviewed or determined, and upon the necessity of conducting further

deliberation with respect to essential requirements, the Reviewing Officer may, in

his or her discretion, conduct a full de novo8 review or may utilize an ad hoc

9

review procedure, as he or she deems reasonable or in the interest of, or

furtherance of justice10

and/or of economic benefit to the United States.

8 Anew, afresh, from the beginning; without consideration of previous instances, proceedings or determinations

en.wiktionary.org/wiki/de_novo 9 Ad hoc is a Latin phrase which means "for this purpose". It generally signifies a solution designed for a specific

problem or task, non-generalizable, and which cannot be adapted to other purposes.

en.wikipedia.org/wiki/Ad_hoc 10 As a matter of discretion, but only when required by the existence of some compelling factor, consideration or

circumstance clearly demonstrating that the alternative inflexibility of rules would constitute or result in injustice

and would be likely reversed as ―arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

the spirit as well as the letter of the law. Patterned after: New York Criminal Procedure Law §§ 170.40 and 210.40

and 5 USC § 706 (1) (A).

Page 35

(E) AAO Decision. The Appeals Officer shall follow established procedures in

consultation with fellow Appeals Officers and Supervisors. Any delegated

Reviewing Officer shall coordinate any consultation or outside research through

the AAO. AAO may consult with the USCIS Office of Chief Counsel, other

USCIS or DHS components, the Library of Congress, the State Department, or

any other Government Agency as authorized by superiors at USCIS in

researching legal questions and complex or novel issues concerning business

practices, investments, economics, labor, or any other relevant subject. The

Appeals Officer or delegated Reviewing Officer may further develop the case and

facts thereof within a reasonable period of time as set by AAO and USCIS

management. The Appeals Officer may approve or deny the benefit upon

completion of development and review of the case, or remand the case for

completion or further consideration. The written decision will reflect the grant or

denial of the benefit, or action required on remand, with specificity. The least

desirable option is to remand for correction of USCIS procedural or substantive

errors.

(1) AAO Approval of the Benefit. This may be in the form of a sustained

appeal or motion. This may be the remand of an overturned recommended

denial with instructions to approve, as specified in the written remand

order, and notify the applicant of rights and responsibilities. This may be

an affirmance of a recommended approval, with or without modification.

(i) The AAO may either prepare an Approval Notice itself and

remand it to the Service Center to issue, or remand to the Service

Center to prepare and issue the Approval Notice as systems

capabilities and staffing dictate to ensure prompt notification.

(ii) The Approval Notice will describe the geographic area

covered, the specific industries or types of businesses approved for

investment and will make specific reference to the job projection

and economic impact model and/or methodology that was

submitted and reviewed for acceptability.

(iii) The written Approval Notice will inform the Regional Center

of its recordkeeping and reporting responsibilities as anticipated by

subparagraph (6) of this paragraph (m) and prohibition against

making substantive material changes to previously submitted-and-

reviewed standard written business documents and/or business

Page 36

plans and/or investment instruments and/or mechanisms

anticipated to be submitted with individual investor petitions.

(2) AAO Denial of the Benefit. This may be in the form of a dismissed

appeal or motion. This may be an affirmance of a recommended denial,

with or without modification. This may be an overturned recommended

approval. The AAO will issue a detailed analysis of the law and facts of

the case in support of its decision. The denial will include the rights to

submit a single optional motion to reopen and/or reconsider, or to submit

a new application, or to file for judicial review in accordance with 5 USC

§ 706.

(3) Remand to the Service Center Director. With the broad review

authority, powers and procedures afforded to the Appeals Officer or

delegated Reviewing Officer in this paragraph (m)(5)(iv), remands should

be limited to:

(i) Remand with specific instructions, as described in (iv)(E)(1), or

(ii) A procedural errors: Reversible error during a proceeding

sufficiently harmful to justify reversing the judgment of the prior

Officer, or

(iii) A substantive error:

(A) mistake, inadvertence, surprise, or excusable neglect;

(B) newly discovered evidence which by due diligence

could not have been discovered in time to avoid forwarding

the case to AAO [such as late interfiling of mail]; it is

appropriate for AAO to remand for a consideration of

evidence by the Service Center Director in the first

instance,

(C) fraud, misrepresentation, or other misconduct of an

adverse party (for referral to fraud investigation or OIG, if

for employee misconduct);

(D) a prior rule, whether, precedent, statute or regulation,

upon which it is based has been reversed, modified, or

otherwise vacated, or it is no longer equitable that the rule

should have prospective application; or

(E) any other reason in the interest, or furtherance, of

justice that relieves appellant from the operation of the rule.

Page 37

(4) Consideration for Publication. Any decision, whether an Approval,

Denial, or remand in which the case involves an unusually complex or

novel issue of law or fact, or matter of first impression, may be referred to

the appropriate parties in accordance with §§ 103.3 (c) and 103.9 (a) of

this chapter. ]

(6) Termination of participation of Regional Centers. [No Changes.]

(7) Requirements for alien entrepreneurs. An alien seeking an immigrant visa as an alien

entrepreneur under the Immigrant Investor Pilot Program must demonstrate that his or her

qualifying investment is within a Regional Center approved pursuant to paragraph (m)(4) of this

section and that such investment will create jobs indirectly through [DELETE: ―revenues

generated from increased exports resulting from‖ AND ADD: ―investment in‖] the new

commercial enterprise.

(i) [DELETE: ―Exports. For purposes of paragraph (m) of this section, the term ―exports‖

means services or goods which are produced directly or indirectly through revenues

generated from a new commercial enterprise and which are transported out of the United

States‖ AND ADD: ―Regional Center Affiliation. To establish affiliation, the petitioner

shall include a copy of the Regional Center Approval Notice for the Regional Center.

USCIS reserves the right to confirm any claimed affiliation by directly contacting the

Regional Center.]

(ii) Indirect job creation. To show that [ADD: any of the required] 10 [ADD: permanent

full-time jobs,] or more[,] [DELETE: jobs] are actually created indirectly by the business,

[DELETE: ―reasonable methodologies may be used. Such methodologies may include

multiplier tables, feasibility studies, analyses of foreign and domestic markets for the

goods or services to be exported, and other economically or statistically valid forecasting

devices which indicate the likelihood that the business will result in increased

employment.‖ AND ADD: ―the investor may ask USCIS to consult its own Regional

Center Files as to the approved job creation methodology previously submitted by the

Regional Center to verify any Approval Notice provided to the petitioner by the Regional

Center that has been submitted as evidence in support of the petition. In the alternative,

USCIS shall also accept a newly prepared Job Creation Model based on a previously

submitted, vetted, and approved methodology for use by that Regional Center however,

any newly submitted documentation shall have to withstand full scrutiny on its own

merits.‖]

(8) Time for submission of petitions for classification as an alien entrepreneur under the

Immigrant Investor Pilot Program. Commencing on October 1, 1993, petitions will be accepted

Page 38

for filing and adjudicated in accordance with the provisions of this section if the alien

entrepreneur has invested or is actively in the process of investing within a Regional Center

which has been approved by [DELETE: ―the Service‖ AND ADD: ―USCIS‖] for participation in

the Pilot Program. [ADD: Such claimed affiliation shall be subject to verification by USCIS.]

(9) Effect of termination of approval of Regional Center to participate in the Immigrant Investor

Pilot Program. Upon termination of approval of a Regional Center to participate in the

Immigrant Investor Pilot Program, the director shall send a formal written notice to any alien

within the Regional Center who has been granted lawful permanent residence on a conditional

basis under the Pilot Program, and who has not yet removed the conditional basis of such lawful

permanent residence, of the termination of the alien's permanent resident status, unless the alien

can establish continued eligibility for alien entrepreneur classification under section 203(b)(5) of

the Act. [ADD: ―Investors with pending I-526 Petitions shall be notified of the termination of the

Regional Center and the mechanisms available to them for re-filing, if necessary, and desired.‖]